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New Jersey's highest court today ruled that Ocean County Jail must pay a widow $1.5 million for negligence in her estranged husband's suicide.

The court rejected arguments that Ocean County was granted immunity from the matter.

On September 8, 2010, Kenneth Conforti, while estranged from his wife, Carol Ann, was arrested and jailed in Ocean County Jail (OCJ) for violating a restraining order by breaking into the former marital home to see his nine-year-old son who is deaf and afflicted with Down's Syndrome. At his OCJ intake, the forty-five-year-old Kenneth advised a staff member of Correctional Health Services, Inc. (CHS), - a contractor providing medical and mental health services to OCJ inmates - that he was experiencing feelings of hopelessness and helplessness because of: (1) the deterioration of his marriage; (2) his inability to control his alcoholism and daily consumption of a half-gallon of vodka; and (3) unsuccessful back surgery leaving him in pain and with rods and screws in his back. He denied having any thoughts of suicide or that he had ever been diagnosed with depression. Kenneth was consequently kept in the OCJ's medical housing unit under critical observation because of alcohol withdrawal and was prescribed medication for five days to mitigate his withdrawal symptoms. He was also scheduled for a psychiatric evaluation.

On September 10, Kenneth was cleared for housing in the jail's general population and was provided a doctor's order giving him an extra mattress and pain medication and directing that he was not to work or be assigned to a top bunk. Kenneth was released from OCJ on October 4.

Over a week later, on October 13, Kenneth was arrested again and returned to OCJ because he went back to the marital home. Kelly Clough, a CHS nurse, conducted Kenneth's intake but did not review his September intake paperwork and took him at his word that he had never been previously jailed. He denied any medical or mental health issues or any feelings of hopelessness or helplessness and claimed that he only drank socially. Yet, because Kenneth was given the same inmate number he had during his recent jailing, his records from that confinement were readily available to Clough to contradict his representations. Kenneth was not referred by medical staff as a suicide risk.

On October 16, Kenneth filled out a medical/dental request form requesting "medical" attention for "back pain." Two days later, Clough wrote back "you can order Motrin or Tylenol from the commissary." 

On October 20, Kenneth wrote a suicide note to his parents, shut the door to his cell, causing the door to lock automatically, and placed a sheet over the cell door window. He then tied bedsheets together and hung himself from a ceiling light fixture over the toilet. An autopsy confirmed that he died of asphyxiation by hanging.

His widow, Carol Ann, filed suit in New Jersey Superior Court in Ocean County seeking compensatory and punitive damages, including punitive damages against the County alleging Kenneth's suicide was the result of their negligence, and violations of the NJCRA, the Wrongful Death Act (WDA), and the New Jersey Survival Act (SA). The County denied plaintiff's claims and asserted immunity under the New Jersey Tort Claims Act (TCA).

Prior to trial, the County moved for summary judgment dismissal of the lawsuit. Judge James Den Uyl granted partial summary judgment to the County, dismissing plaintiff's NJCRA and punitive damages claims.

Trial occurred over several days in June 2018. At the conclusion of the case, the County unsuccessfully moved for a directed verdict. The jury later returned a verdict in favor of plaintiff, awarding her $150,000 in WDA damages and $1,400,000 for pain and suffering under the SA, finding the County sixty percent liable and CHS forty percent liable. 

The County filed a motion for judgment notwithstanding the verdict (JNOV), or, alternatively, a new trial or remittitur. 

The County argued that they were entitled to TCA immunity, determining the OCJ was not a "medical facility" given immunity for certain actions under N.J.S.A. 59:6-4, -5, and -6. Medical facilities were limited to "a hospital, infirmary, clinic, dispensary, mental institution or similar facility," and do not include a jail's medical intake process and services. By contrast any protections for "Corrections and Police Activities" were specifically addressed in N.J.S.A. 59:5-1 to -6.

The trial judge denied the County's motion for JNOV, rejecting this argument, and determining that the County could not overcome the clear ruling "in Hake v. Manchester Twp., wherein our Supreme Court approved the trial court's charge that 'expressly permitted the jury to find liability if the suicide was foreseeable .'"

The County then filed an appeal to the New Jersey Appellate Division, contending for the first time that the immunities granted in TCA were not limited to medical facilities and that they were entitled to absolute immunity under N.J.S.A. 59:6-4 (failure to make physical or mental exam), N.J.S.A. 59:6-5 (failure to diagnose mental illness or substance abuse), and N.J.S.A. 59:6-6 (determination on terms of confinement) because plaintiff's "overarching claim" was that they committed psychiatric and medical malpractice in failing to diagnose Kenneth's severe depression, alcoholism, and back pain, and, thereby not recognizing him as a suicide risk when assigning him to a cell in the OCJ's general population.

In a written decision released on August 2, 2021, Appellate Division Judges Sumners, Geiger, and Mitterhoff dismissed the appeal and affirmed the final judgment.

The County then petitioned the New Jersey Supreme Court, the State's highest court.

In a written decision just released, the Court mostly affirmed the final judgment, rejecting arguments from the county that their employees were immune from claims of negligence under state law.

Justice Wainer Apter wrote the decision, with Chief Justice Rabner and Justices Solomon and Pierre-louis joining in. Justice Fasciale filed an opinion concurring in part and dissenting in part, in which Justice Patterson joined in. Judge Sabatino (temporarily assigned) did not participate in this case.

Testimony at trial established that an inmate closing a cell door would cause the door to lock automatically and trigger a light to alert staff. Surveillance footage of areas outside Conforti’s cell existed and was preserved after his death, but an OCJ warden testified that it subsequently became unviewable for technological reasons.

The OCJ Suicide Prevention Policy states that officers “should make unsystematic patrols of the housing area” to “hinder the inmate’s efforts” of timing the patrols and to “increase the possibility of successful intervention.” Yet the logbook indicates checks on Conforti’s cell block on October 20 at 8:03 a.m., 9:02 a.m., 9:56 a.m., 11:02 a.m., and 12:03 p.m. Any change in the logbook was supposed to be initialed, with a reason provided. Despite that, the time of the entry that followed the 12:03 p.m. health and welfare check was overwritten or obliterated with a 12:55 p.m. notation for “possible suicide.” There was no reason provided, and no initials

During discovery, plaintiff submitted an expert report from Martin Horn, who opined that the defendants acted negligently by failing to adequately train and supervise OCJ staff to prevent inmate suicide; failing to adopt and implement an adequate suicide prevention policy; failing to follow OCJ’s existing Suicide Prevention Policy; failing to conduct mortality reviews and revise policies after inmate suicides; failing to “recognize Mr. Conforti presented a risk of suicide”; housing Conforti in an occupied single-bunk cell, ensuring he had no bunk to sleep on; “failing to recognize or appreciate the danger of a closed and locked cell door with a towel covering the door”; and “engaging in predictable and easily timed and anticipated patrols of the cell block when the . . . Policy prohibited systematic patrols.”

The Court held that the definition of “medical facility” under N.J.S.A. 59:6-1 does not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5, or -6, which are also not “superseded in the jail suicide context.” However, there was evidence presented in this case, both at the summary judgment stage and at trial, that falls outside of any immunities granted by N.J.S.A. 59:6-4, -5, and -6. The jury could reasonably have concluded from that evidence that the County was negligent. The trial court was therefore correct to refuse to dismiss plaintiff’s negligence count at the summary judgment stage and to refuse to overturn the jury’s verdict after trial.

The guiding principle of the TCA is that immunity from tort liability is the general rule and liability is the exception. N.J.S.A. 59:6-1 defines “medical facility” as “a hospital, infirmary, clinic, dispensary, mental institution, or similar facility.

The County argues that, despite that definition their conduct was immunized by three separate substantive provisions of Chapter Six: N.J.S.A. 59:6-4, which grants absolute immunity for a public entity or public employee’s failure to perform an adequate examination to determine whether a person has a physical or mental condition which would be hazardous to that person or others, unless the examination is for the purpose of treatment; N.J.S.A. 59:6-5, which grants immunity to public entities and employees for diagnosing or failing to diagnose “that a person has a mental illness” or drug use disorder, and from failing to prescribe treatment for a mental illness or drug use disorder; and N.J.S.A. 59:6-6, which grants immunity for decisions regarding whether to confine a person for mental illness or drug dependence, and the terms and conditions of such confinement or release. 

N.J.S.A. 59:6-1’s definitions section does not limit the substantive immunities provided by 59:6-4, -5, or -6 to “medical facilities,” and the immunities set forth in 59:6-4, -5, and -6 are not “inapplicable in jail suicide cases” or “superseded in the jail suicide context.” In theory, therefore, defendants could be immunized from liability for specific conduct under 59:6-4, -5, and -6.

However, because there was evidence here from which the jury could have concluded that the County was negligent beyond any immunities possibly granted by N.J.S.A. 59:6-4, -5, and -6, the trial court was correct to refuse to dismiss plaintiff’s negligence count at the summary judgment stage and to refuse to overturn the jury’s verdict after trial. Reviewing the grounds on which Horn’s report opined that the County was negligent, the Court finds that, even though the trial court was wrong in failing to address defendants’ arguments under the TCA at the summary judgment stage, it did not err in refusing to dismiss the negligence count because there was evidence from which a jury could find negligence without reference to any immunized conduct. And at trial, the jury heard voluminous testimony about the County's negligence that was unrelated to any conduct immunized under 59:6-4, -5, and -6, including testimony from Horn. 

While defendants’ expert refuted Horn’s testimony, it was up to the jury to decide which expert to believe. The jury was also free to rely on the existing OCJ Suicide Prevention Policy, admitted at trial, which provides that an “officer should make unsystematic patrols of the housing areas,” and to infer culpability against the County from the “conveniently overwritten log entry and unavailable security footage.”

Because the jury’s verdict here is supported by non-immunized conduct introduced at trial, this case is not like others in which a claim against a public entity or public employee was held immunized by N.J.S.A. 59:6-4, -5, or -6, and the Court does not reach the contours of immunity under those provisions. The Court does note, however, that the Appellate Division erred when it stated that defendants had no immunity under 59:6-4 “regarding Conforti’s medical intake, which was done to assess his OCJ confinement and not conducted for treatment purposes.” That is the opposite of what 59:6-4 actually says. N.J.S.A. 59:6-4 applies only to exams that are not conducted “for the purpose of treatment” and explicitly denies immunity when examinations are conducted for treatment purposes.

The winning attorney is Donald F. Burke, Jr. Esq.

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